F.I.F.A. – Dispute Resolution Chamber / Camera di Risoluzione delle Controversie – labour disputes / controversie di lavoro (2019-2020) – fifa.com – atto non ufficiale – Decision 15 April 2020
Decision of the
Dispute Resolution Chamber (DRC) judge
passed on 15 April 2020,
by Stijn Boeykens (Belgium), DRC judge
on the claim presented by the player,
Godbless Asamoah, Ghana,
represented by Mr Mathew Chukwuemeka Friday
as Claimant
against the club,
Sunshine Stars FC, Nigeria
as Respondent
regarding an employment-related dispute between the parties
I. Facts of the case
1. On 8 May 2018, the Ghanaian player, Godbless Asamoah, (hereinafter: the Claimant),
and the Nigerian club, Sunshine Stars Football Club, (hereinafter: the Respondent)
concluded an employment contract valid as from 8 May 2018 until 8 December 2019
(hereinafter: the contract), pursuant to which the Respondent undertook to pay the
Claimant a monthly salary of Nigerian Naira (NGN) 550,000.
2. On 11 May 2018, the parties signed an additional agreement (hereinafter: the
agreement), valid as from the date of signature until 31 December 2018, as per which
the Claimant would receive a monthly salary of NGN 500,000 as well as NGN 500,000
as “consideration fee”.
3. According to the Claimant, the Respondent paid his salaries from June to October
2018, but as from November 2018 the Respondent suspended the payment of his
salaries.
4. On 14 March 2019, the Respondent issued a statement, as per which the Claimant’s
contract “expired at the end of 2017/2018 football season”, and that he is free to sign
with the club of his choice and the club does not owe anything to him as from
November 2018. Moreover, the Claimant claimed to have also been excluded from
training and was deregistered.
5. The Claimant further stated that from 18 March 2019 to 23 July 2019, he sent the
Respondent several reminders, by means of which he rejected the termination and
requested the payment of his outstanding remuneration and compensation.
6. On 24 April 2019, the Respondent reacted to a letter of the Claimant allegedly dated
4 January 2018, claiming that the season 2017/2018 finished in October 2018 and up
until then the Claimant was correctly paid. The Respondent explained that no salaries
are due for November and December 2018, but acknowledged owing the player a
“consideration fee” of Nigerian Naira 500,000.
7. Finally, the Claimant deemed that the Respondent terminated the contract without
just cause and claimed to have been unemployed up until the date he lodged the
claim.
8. On 25 December 2019, the Claimant lodged a claim against the Respondent in front
of FIFA for outstanding remuneration and compensation for breach of contract,
claiming the following:
a. “A declaration that the Respondent has unlawfully breached the contract of
employment by failing to pay the Claimant his salaries upon the due execution, and by deregistering him and banishing him from training and
other activities of the club.
b. An order that the amount of One Million, One Hundred Thousand in Nigeria
currency NGN 550.000 x 2 months = (NGN) 1,100,000.00) is due, payable by the
respondent as the outstanding salaries plus 5% per annum.
c. An order granting the claim of the Claimant as payment for the residual value
of the contract from January 2019 to December 2019 or when the Claimant’s
eventually signs a new contract: plus 5% per annum of the amount.
d. An order granting additional monetary compensation as damages to the
Claimant in the tune of NGN 550,000.00.
e. And such further orders or other orders as the Dispute Resolution Chamber
may deem fit to make in the circumstance.
Therefore, the breakdown are as follows:
i. Unpaid salaries from November and December 2018 – salaries at NGN
550,000.00 per month- x 2 months = NGN 1,100,000.00 plus 5% p.a.
ii. Residual value of the contract from January 2019 till December 2019
end of contract period = NGN 6,600,000.
9. In its reply to the claim, the Respondent, first of all, maintained that no amounts are
due to the Claimant at all.
10. The Respondent further maintained that “the player was contracted to the Club
during the mid-season of 2017/2018 football season (i.e. from May to October 2018)
at an agreed clearance fee of N500,000 which was paid to him in two (2) equal
instalments as agreed via our letter dated 27th July 2019 and acknowledged by the
player […]”.
11. Moreover, the Respondent stated that it “equally agree with the player for the
payment of N550,000.00 (less 2% administrative charge) monthly salary from May
2018 till the end of the season (i.e. October, 2018). The Club paid and the player
received his full salaries into the Zenith Bank, […] provided by the player from May
to October 2018 when his contract expired.”
12. Furthermore, the Respondent sustained that “the season of Nigeria Professional
Football League (NPFL) for 2017/2018 ended in October 2018 and all the
misunderstanding as regards the player contract running from January to December
has been resolved by the Nigeria league organizer via its circular dated 23rd July
2019.”
13. The Respondent added that “[…] it is a fallacy that the player was deregistered and
banned from training and other club activities.”
14. The Respondent concluded by affirming “that at the expiration of his six (6) months
contract with the club, the player was released from his contract effective from 1st
November, 2018. The release letter dated 14th March 2019 was forwarded to the
player personal email address […] on his request.
The player did not and was not in the employment of the Club for November and
December, 2018. Therefore, any claim for the payment of salaries for the months is
irrelevant and unfounded.
On the player’s claim of residual value of the sum of N6,600,000.00 from January to
December, 2019 contract period, the Club viewed the claim as baseless considering
the fact that there is no binding contract between both parties for the period under
reference. It is clearly stated in the contract employment of the player the specific
duration of his contract unless extended and since his contract was not extended, he
has no right to any claim with the club. We hereby request that his claim be
disregarded.”
II. Considerations of the DRC judge
1. First of all, the DRC judge analysed whether he was competent to deal with the
matter at stake. In this respect, the DRC judge took note that the present matter was
submitted to FIFA on 25 December 2019. Taking into account the wording of art. 21
of the 2019 edition of the Rules Governing the Procedures of the Players’ Status
Committee and the Dispute Resolution Chamber (hereinafter: the Procedural Rules),
the aforementioned edition of the Procedural Rules is applicable to the matter at
hand.
2. Subsequently, the DRC judge referred to art. 3 par. 1 and 2 of the Procedural Rules
and confirmed that, in accordance with art. 24 par. 1 and 2 in combination with art.
22 lit. b) of the Regulations on the Status and Transfer of Players, the DRC judge is
competent to deal with the matter at stake, which concerns an employment–related
dispute with an international dimension.
3. Furthermore, the DRC judge analysed which edition of the Regulations on the Status
and Transfer of Players should be applicable as to the substance of the matter. In this
respect, the DRC judge confirmed that, in accordance with art. 26 par. 1 and par. 2 of
the said Regulations and considering that the present claim was lodged in front of
FIFA on 25 December 2019, the October 2019 edition of the Regulations on the Status
and Transfer of Players (hereinafter: the Regulations) is applicable to the matter at
hand as to the substance.
4. The competence of the DRC judge and the applicable regulations having been
established, the DRC judge entered into the substance of the matter. In this respect, the DRC judge started by acknowledging all the above-mentioned facts as well as the
arguments and the documentation submitted by the parties. However, the DRC judge
emphasised that in the following considerations it will refer only to the facts,
arguments and documentary evidence, which he considered pertinent for the
assessment of the matter at hand.
5. In this respect, the DRC judge acknowledged that, on 8 May 2018, the Claimant and
the Respondent concluded an employment contract valid as from the date of
signature until 8 December 2019, pursuant to which the Respondent undertook to
pay to the Claimant a monthly salary of NGN 550,000.
6. The DRC judge further acknowledged that, on 11 May 2018, the parties signed an
agreement, valid as from the date of signature until 31 December 2018, as per which
the Claimant would receive a monthly salary of NGN 500,000 as well as NGN 500,000
as “consideration fee”.
7. Moreover, the DRC judge took that, by letter sent to the Claimant on 14 March 2019,
the Respondent terminated the Claimant’s employment contract as of 1 November
2018, arguing that the contract expired in October 2018.
8. Having recalled the above, the DRC judge observed that, the Claimant, in his claim,
requested outstanding remuneration and compensation for breach of contract in the
total amount of NGN 7,700,000, plus 5% interest p.a.
9. The DRC judge further noted that the Respondent explained that the contractual
relationship between the parties “expired at the end of 2017/2018 football season”,
and pointed out that it had fulfilled all its contractual obligations towards the
Claimant until November 2018. The Respondent further sustained that the Claimant
has not been excluded from training and de-registered.
10. The DRC judge considered the positions of the parties and deemed that the main
issue of the present dispute is to determine a) which legal document(s) was(were) at
the basis of the parties’ employment relationship and 2) whether the latter had been
unilaterally terminated by the Respondent and if so, c) with or without just cause.
11. The DRC judge first focused on the Respondent’s allegation with the specific issue of
the legal document at the basis of the parties’ employment relationship. In this
respect, the DRC judge noted that the Respondent sustained that there was no
binding contract between the parties for the period of January to December 2019,
since the employment contract had already expired at the end of December 2018.
12. In this regard, the DRC judge noted that two agreements were signed between player
and club: (1) the employment contract, signed on 8 May 2018, which was valid until
8 December 2019; and (2) an agreement, signed on 11 May 2018, which was valid
until 31 December 2018.
13. The DRC judge deemed that, from the evidence on file, it cannot be concluded that
that the agreement replaced the employment contract. In other words, both the
contract and agreement were valid in parallel. Thus, it can be established that the
employment relationship between the parties would expire on 8 December 2019 only.
14. Having established the foregoing, the DRC also noted that it remained undisputed
that as from November 2018, the club deregistered and stopped paying the player.
Consequently, the DRC judge concluded that the club unilaterally terminated the
employment contract on 1 November 2018.
15. Bearing in mind the unilateral termination by the club, the DRC judge went on to
analyse whether such termination had been made with or without just cause. In this
respect, the DRC judge considered relevant to recall his longstanding jurisprudence,
according to which, besides the timely payment of remuneration, the access to
training and the possibility to participate in competitions with his fellow team mates
in official matches are also fundamental rights of the player under an employment
contract.
16. Thus, the DRC judge considered that the Respondent by de-registering the player, on
1 November 2018, effectively barred, in an absolute manner, his potential access to
competitions and, as such, violated one of his fundamental rights as a football player.
17. Therefore, the DRC judge established that the de-registration of a player constitutes
a serious breach of contract since it de facto prevents a player from being eligible to
play for his club and perform as per his employment contract.
18. Furthermore, the DRC judge noted that such de-registration was based on the alleged
fact that the contract relationship between the parties ended on October 2018, for
which no sufficient evidence was presented by the Respondent since the contracts
provided clearly stated that they were running respectively until 8 December 2019
and 31 December 2018, and consequently it is not justifiable the measure taken
against the Claimant in the present case.
19. The DRC judge equally noted that it remained undisputed between the parties that
the Respondent, based on its belief that the contract expired on October 2018, on 14
March 2019, had informed the Claimant that the contract was terminated as of 1
November 2018. This communication, followed be the player’s de-registration, consist
of a serious, unjustified breach of the contract by the Respondent.
20. On account of the above, the DRC judge decided that the Respondent did not have a
just cause to unilaterally terminate the employment relationship with the Claimant
on 1 November 2018 and, consequently, the latter must bear the financial and/or
sporting consequences of the early termination, in addition to any outstanding
payments on the basis of the relevant employment contract.
21. Having established that the Respondent is to be held liable for the early termination
of the employment contract without just cause, the DRC judge focussed his attention
on the consequences of such termination. Taking into consideration art. 17 par. 1 of
the Regulations, the DRC judge decided that the Claimant is entitled to receive from
the Respondent an amount of money as compensation for breach of contract.
22. In continuation, the DRC judge focused his attention on the calculation of the amount
of compensation for breach of contract in the case at stake. In doing so, the DRC
Judge firstly recapitulated that, in accordance with art. 17 par. 1 of the Regulations,
the amount of compensation shall be calculated, in particular and unless otherwise
provided for in the contract at the basis of the dispute, with due consideration for
the law of the country concerned, the specificity of sport and further objective
criteria, including, in particular, the remuneration and other benefits due to the
Claimant under the existing contract and/or the new contract, the time remaining on
the existing contract up to a maximum of five years, and depending on whether the
contractual breach falls within the protected period.
23. In application of the relevant provision, the DRC judge held that he first of all had to
clarify as to whether the pertinent employment contract contains a provision by
means of which the parties had beforehand agreed upon an amount of compensation
payable by the contractual parties in the event of breach of contract. In this regard,
the DRC judge established that no such compensation clause was included in the
employment contract at the basis of the matter at stake.
24. As a consequence, the DRC judge determined that the amount of compensation
payable by the Respondent to the Claimant had to be assessed in application of the
other parameters set out in art. 17 par. 1 of the Regulations. The DRC judge recalled
that said provision provides for a non-exhaustive enumeration of criteria to be taken
into consideration when calculating the amount of compensation payable. Therefore,
other objective criteria may be taken into account at the discretion of the deciding
body.
25. The DRC judge then turned his attention to the remuneration and other benefits due
to the Claimant under the existing contract and/or the new contract, which criterion
was considered by him to be essential. The DRC judge deemed it important to
emphasise that the wording of art. 17 par. 1 of the Regulations allows him to take into account both the existing contract and the new contract in the calculation of the
amount of compensation.
26. Bearing in mind the foregoing, the DRC judge proceeded with the calculation of the
monies payable to the Claimant under the terms of the employment contract as from
its date of termination without just cause by the Respondent, i.e. 1 November 2018,
until the end of the contract, and concluded that the Claimant would have received
in total NGN 7,150,000 as remuneration had the contract been executed until its
expiry date. Consequently, the DRC judge concluded that the amount of NGN
7,150,000 serves as the basis for the final determination of the amount of
compensation for breach of contract in the case at hand.
27. In continuation, the DRC judge verified as to whether the Claimant had signed an
employment contract with another club during the relevant period of time, by means
of which he would have been enabled to reduce his loss of income. According to the
constant practice of the DRC judge, such remuneration under a new employment
contract shall be taken into account in the calculation of the amount of compensation
for breach of contract in connection with the player’s general obligation to mitigate
his damages. The DRC judge noted that the Claimant was not able to mitigate his
damages, as he did not sign a new employment contract for the relevant period of
time.
28. In addition, taking into account the Claimant’s request and the DRC’s well-established
jurisprudence, the DRC judge decided that the Respondent must pay to the Claimant
interest of 5% p.a. on the amount of NGN 7,150,000 as of 25 December 2019, until
the date of effective payment.
29. Furthermore, taking into account the consideration under number II./3. above, the
DRC judge referred to par. 1 and 2 of art. 24bis of the Regulations, which stipulate
that, with its decision, the pertinent FIFA deciding body shall also rule on the
consequences deriving from the failure of the concerned party to pay the relevant
amounts of outstanding remuneration and/or compensation in due time.
30. In this regard, the DRC judge pointed out that, against clubs, the consequence of the
failure to pay the relevant amounts in due time shall consist of a ban from registering
any new players, either nationally or internationally, up until the due amounts are
paid and for the maximum duration of three entire and consecutive registration
periods.
31. Therefore, bearing in mind the above, the DRC judge decided that, in the event that
the Respondent does not pay the amounts due to the Claimant within 45 days as from
the moment in which the Claimant, following the notification of the present decision,
communicates the relevant bank details to the Respondent, a ban from registering any new players, either nationally or internationally, for the maximum duration of
three entire and consecutive registration periods shall become effective on the
Respondent in accordance with art. 24bis par. 2 and 4 of the Regulations.
32. Finally, the DRC judge recalled that the above-mentioned ban will be lifted
immediately and prior to its complete serving upon payment of the due amounts, in
accordance with art. 24bis par. 3 of the Regulations.
33. The DRC judge concluded its deliberations in the present matter by establishing that
Claimant’s claim is partially accepted and that any further claim lodged by the
Claimant is rejected.
III. Decision of the DRC judge
1. The claim of the Claimant, Godbless Asamoah, is partially accepted.
2. The Respondent, Sunshine Stars FC, has to pay to the Claimant the amount of NGN
7,150,000 as compensation for breach of contract plus interest at the rate of 5% p.a.
as from 25 December 2019 until the date of effective payment.
3. Any further claim lodged by the Claimant is rejected.
4. The Claimant is directed to inform the Respondent, immediately and directly,
preferably to the e-mail address as indicated on the cover letter of the present
decision, of the relevant bank account to which the Respondent must pay the amount
mentioned under points 2. above.
5. The Respondent shall provide evidence of payment of the due amount in accordance
with points 2. above to FIFA to the e-mail address psdfifa@fifa.org, duly translated, if
need be, into one of the official FIFA languages (English, French, German, Spanish).
6. In the event that the amount due plus interest in accordance with points 2. above is
not paid by the Respondent within 45 days as from the notification by the Claimant
of the relevant bank details to the Respondent, the Respondent shall be banned from
registering any new players, either nationally or internationally, up until the due
amounts is paid and for the maximum duration of three entire and consecutive
registration periods (cf. art. 24bis of the Regulations on the Status and Transfer of
Players).
7. The ban mentioned in point 6. above will be lifted immediately and prior to its
complete serving, once the due amount is paid.
8. In the event that the aforementioned sum plus interest is still not paid by the end of
the ban of three entire and consecutive registration periods, the present matter shall
be submitted, upon request, to FIFA’s Disciplinary Committee for consideration and a
formal decision.
*****
Note related to the publication:
The FIFA administration may publish decisions issued by the Players’ Status Committee or
the Dispute Resolution Chamber. Where such decisions contain confidential information,
FIFA may decide, at the request of a party within five days of the notification of the
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Rules Governing the Procedures of the Players’ Status Committee and the Dispute
Resolution Chamber).
Note related to the appeal procedure:
According to article 58 par. 1 of the FIFA Statutes, this decision may be appealed against
before the Court of Arbitration for Sport (CAS). The statement of appeal must be sent to
the CAS directly within 21 days of receipt of notification of this decision and shall contain
all the elements in accordance with point 2 of the directives issued by the CAS. Within
another 10 days following the expiry of the time limit for filing the statement of appeal,
the appellant shall file a brief stating the facts and legal arguments giving rise to the appeal
with the CAS (cf. point 4 of the directives).
The full address and contact numbers of the CAS are the following:
Court of Arbitration for Sport
Avenue de Beaumont 2
1012 Lausanne
Switzerland
Tel: +41 21 613 50 00
Fax: +41 21 613 50 01
e-mail: info@tas-cas.org
For the DRC judge:
Emilio García Silvero
Chief Legal & Compliance Officer